Bombay High Court
J.D And Company Pvt.Ltd. And 2 Ors vs The Deputy Commissioner Zone Iv And 10 … on 17 July, 2026
Author: Manish Pitale
Bench: Manish Pitale
bipin prithiani
1
wp-1173.16 & anr.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL SIDE JURISDICTION
WRIT PETITION NO. 1173 OF 2016
Rohan J. Tiwari & Ors. ... Petitioners
Versus
Municipal Corporation of Greater
Mumbai & Ors. ... Respondents
WITH
WRIT PETITION NO. 414 OF 2023
J. D. and Company Pvt. Ltd. & Ors. ... Petitioners
Versus
Municipal Corporation of Greater
Mumbai & Ors. ... Respondents
******
Mr. Drupad Patil for the Petitioners in WP/1173/2016 and for
Respondent No.7 to 11 in WP/414/2023.
Mr. Vishal Kanade a/w Ms. Janhavee Joshi, Ms. Shlesha Sheth,
Ms. Kalyani Deshmukh and Mr. Jagdish Rajgor i/by FZB &
Associates for Petitioners in WP/414/2023 and for Respondent
No.5 in WP/1173/2016.
Mr. A. Y. Sakhare, Senior Advocate, a/w Ms. Anuja Tirmali i/by
Ms. Komal Punjabi for Respondent Nos. 1 to 3-MCGM in WP/
1173/2016 and for Respondent Nos.1 to 4-MCGM in WP/
414/2023.
Mr. Akshay Shinde for Respondent No.4-MMRDA in WP/1173/
2016 and for Respondent No.5 in WP/414/2023.
Ms. Varsha Sawant, AGP for Respondent No.6-State in WP/414/
2023.
Mr. Mayur Bhande, J. E. (Maintenance) P/S Ward, Present.
******
CORAM : MANISH PITALE AND
SHREERAM V. SHIRSAT, JJ.
RESERVED ON : 18th JUNE 2026
PRONOUNCED ON : 17th JULY 2026
bipin prithiani
2
wp-1173.16 & anr.doc
Judgment (Per Manish Pitale, J.) :
. The petitioners in these petitions have raised the question
regarding determination of compensation payable to them for
structures and land, in which the petitioners in Writ Petition No.
1173 of 2016 claim rights as lessees and the petitioners in Writ
Petition No. 414 of 2023 claim rights as owners, which have been
utilized for construction of a road, over-bridge or flyover in the
city of Mumbai. The petitioners contend that the respondent-
Municipal Corporation of Greater Mumbai (MCGM) wrongly
calculated the quantum of compensation by taking recourse to
Sections 298 to 301 of the Mumbai Municipal Corporation Act,
1888 (MMC Act) and according to them, the respondents,
including the MCGM, ought to have acquired the lands and
structures under Section 296 of the MMC Act read with Section
91 thereof. According to the petitioners, they are entitled to just
fair and reasonable compensation upon acquisition of the lands
and structures, in accordance with the provisions of law and that
the impugned order dated 11th June 2018 passed by the Deputy
Municipal Commissioner of the respondent-MCGM, determining
compensation payable to them, deserves to be set aside, with a
direction to undertake acquisition and to pay monetary
compensation, in accordance with law.
2. The petitioners in Writ Petition No. 1173 of 2016 are
concerned with their leasehold rights in the land, superstructure
and buildings constructed on CTS No.33A, 33A/1 to 33A/3 and
bipin prithiani
3
wp-1173.16 & anr.doc
33B/1 to 33B/26, situated at Village Goregaon, Taluka Malad,
Mumbai. The predecessors of the petitioners were lessees in the
said property and in Suit No.282 of 1960 filed by the land owners
before this Court, consent terms were filed on 15 th April 1971,
whereby the predecessors of the petitioners were accepted as a
lessees/tenants in the said property. Accordingly, property register
cards were prepared. In the year 1980, the Government of
Maharashtra granted exemption under Section 20(1) of the Urban
Land (Ceiling and Regulation) Act, 1976. On 8 th October 2013,
the said petitioners received a communication from respondent
No.2-Assistant Commissioner of MCGM, stating that since a
portion of the property of the said petitioners would be affected
by the construction of the proposed flyover, they could indicate
their preference for receiving compensation either in the form of
monetary compensation or in the form of Transferable
Development Rights (TDR) or in the form of relocation of the
affected premises. On 9th October 2013, the petitioners responded
by stating that they would be ready for construction of road and
flyover on their property, only after they receive compensation for
the same. The petitioners further sent communications,
demanding compensation.
3. In this backdrop, on 8th January 2014, the respondent-
MCGM, in response to an application filed under the provisions
of Right to Information Act, 2005, sent a reply, stating that the
alignment of the flyover had been finalized by the Executive
bipin prithiani
4
wp-1173.16 & anr.doc
Engineer, but there was no indication as regards compensation
payable to the petitioners. According to the said petitioners, on 8 th
February 2016, officers of the respondent-MCGM came to the
property and forcibly started demolishing the structures. In this
backdrop, on 9th February 2016, the petitioners filed the aforesaid
Writ Petition No. 1173 of 2016, praying for a direction against the
respondents to stop the work of demolishing the structures and for
a declaration that such action was wholly arbitrary and
unconstitutional. On 10th February 2016, the said writ petition
was taken up for consideration urgently by a Division Bench of
this Court and by order dated 10 th February 2016, the respondent-
MCGM was restrained from demolishing the structures. As part of
the structures were demolished, the petitioners in the said writ
petition sought permission to amend the writ petition and by
order dated 17th February 2016, they were permitted to do so,
while the interim order continued to operate.
4. On 17th March 2016, this Court vacated the interim order in
Writ Petition No. 1173 of 2016, on the basis that since
development work could not be halted and the petitioners in the
said writ petition would be entitled to compensation under the
provisions of the MMC Act. At the same time, the respondent-
MCGM was directed to calculate the compensation payable to the
petitioners, with a further direction to deposit 50% of the
compensation so determined before this Court and the petitioners
were permitted to withdraw the same, without security deposit. It
bipin prithiani
5
wp-1173.16 & anr.doc
was also observed that the petitioners would be at liberty to seek
higher compensation, in accordance with law. In the light of the
interim order being vacated, the possession of the lands and the
structures was made over to the respondent-MCGM and the work
of the flyover was completed.
5. The respondent-MCGM through its officer, determined
amount of compensation payable to the petitioners and in an
affidavit filed before this Court, stated that the amount came to
Rs.3,98,28,600/-. An amount of Rs.2 crores, as directed by this
Court, was deposited and the said amount was withdrawn by the
petitioners in the said writ petition. On 6th February 2018, the
respondent-MCGM made a statement before this Court that the
order approving the amount of compensation determined as
payable to the petitioners would be withdrawn and that a fresh
order would be passed by the Deputy Municipal Commissioner of
the respondent-MCGM. It was stated that the exercise would be
completed within a period of three months. In the order passed on
6th February 2018 in the said writ petition, this Court recorded the
aforesaid statement made on behalf of the respondent-MCGM and
also recorded that there was some controversy about provisions of
law under which the compensation was to be fixed, further
observing that the Court was not entering into the said
controversy, as the Corporation was liable to pay compensation
and if the petitioners were aggrieved by the same, they would have
remedies to challenge the same. It was further observed in the said
bipin prithiani
6
wp-1173.16 & anr.doc
order that the petitioners would be at liberty to place documents
before the Deputy Municipal Commissioner of the respondent-
MCGM to give various details about the lands and structures and
also to place documentary evidence to show the market value of
the property on the relevant date. It was also made clear that the
amount already withdrawn by the petitioners would remain
unaffected, as it would be subject to final determination of
compensation.
6. In this backdrop, the Deputy Municipal Commissioner of
the respondent-MCGM passed order dated 11 th June 2018,
determining the amount of compensation payable to the
petitioners in the said writ petition. The said officer determined
the quantum of compensation on the basis of the ready reckoner
rate. After determining the quantum of compensation payable on
such rate, the officer proceeded to deduct 40% towards cost of
land and 25% towards compensation to the Government of
Maharashtra, as its name was recorded in the other rights column.
Upon the figure arrived at after such an exercise, the officer held
that only 50% of the same was payable to the petitioners as
tenants and after adding 100% solatium with a further amount of
Rs.10 lakhs towards compensation for demolished structures, it
was held that an amount of Rs.2,17,97,650/- was payable to the
petitioners in the said writ petition.
7. The petitioners were aggrieved by the said determination of
quantum of compensation and hence, they challenged the said
bipin prithiani
7
wp-1173.16 & anr.doc
order dated 11th June 2018 passed by the Deputy Municipal
Commissioner of respondent-MCGM by amending the writ
petition. By amendment, they also sought a direction against the
respondents to initiate acquisition of the property, as per the
provisions of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Act
of 2013) to pay compensation as per market rate along with 100%
solatium. By the said amendment, the petitioners also raised
specific objection to the manner in which the compensation was
determined by the said officer of the respondent-MCGM by
relying upon Sections 298 to 301 of the MMC Act, further
asserting that acquisition could have been undertaken only under
Section 296 of the MMC Act read with the Act of 2013.
8. The petitioner-company in Writ Petition No. 414 of 2023
also challenged the said order dated 11 th June 2018 passed by the
Deputy Municipal Commissioner of respondent-MCGM. Apart
from raising the grounds already raised by the petitioners in Writ
Petition No. 1173 of 2016, it was contended that there was a
breach of the principles of natural justice, in as much as the
petitioners in Writ Petition No. 414 of 2023, despite being owners
of the lands, were not heard when the compensation was
determined and when it was apportioned by the Deputy Municipal
Commissioner of the respondent-MCGM. It was submitted that
the respondent-MCGM was throughout aware about the fact that
the said petitioners were owners of the land and therefore, the
bipin prithiani
8
wp-1173.16 & anr.doc
quantum of compensation could not have been determined behind
their back. It was submitted that to the extent of the grounds
raised for challenging the basis for determination of quantum of
compensation, the petitioners in the Writ Petition No. 414 of
2023 were supporting the petitioners in Writ Petition No. 1173 of
2016, but they reserved their right to agitate the question of their
share in the amount of compensation.
9. The respondent-MCGM filed its affidavits in both the writ
petitions at various stages and opposed the contentions raised on
behalf of the petitioners. It was asserted that compensation was
correctly determined by placing reliance on Sections 298 to 301 of
the MMC Act. It was further asserted that there was no question
of recourse to Section 296 of the MMC read with the provisions
of the Act of 2013. It was submitted that therefore, the writ
petitions deserved to be dismissed. Rejoinder affidavits were filed
on behalf of the petitioners and therefore, the writ petitions were
taken up for hearing.
10. Mr. Drupad Patil, learned counsel appearing for the
petitioners in Writ Petition No. 1173 of 2016 submitted that in
the present case, the respondent-MCGM could not have relied
upon Sections 298 to 301 for determining the quantum of
compensation payable for the utilization of the lands and
structures for construction of the road and flyover. By inviting
attention of this Court specifically to Section 299 of the MMC
Act, it was emphasized that even if the regular line concerning the
bipin prithiani
9
wp-1173.16 & anr.doc
public street was determined by the respondent-MCGM, a bare
reading of the said provision would show that open land could be
acquired under the said provision only if it was not occupied by a
building. Only if a platform, verandah or other external structure
of a building abutting a public street, was within the regular line of
such a street, by applying Section 299 of the MMC Act, the
Commissioner of the respondent-MCGM, after giving written
notice, could take possession of such land and acquire the same,
which would then be deemed to be a public street. In such a
situation, the quantum of compensation would be determined
under Section 301 of the MMC Act, for the loss suffered by the
owner and for any expense incurred when such an exercise was
carried out. It was emphasized that since in the present case, the
buildings on the said land, of which the petitioners in Writ Petition
No. 1173 of 2016 were lessees, very much existed on the land
which was acquired and utilized for construction of the road and
flyover, there was no question of applicability of Section 299 of
the MMC Act. This was not a case of a portion of a platform,
verandah or some external structure falling within the regular line
of the street. On this basis, it was asserted that in such a situation,
the respondent-MCGM had no alternative, but to take recourse to
Section 296 of the MMC Act, read with Section 91 thereof, to
undertake acquisition of the land and buildings, in accordance
with the statute governing acquisition. On this basis, it was
submitted that the compensation payable to the said petitioners
was required to be determined under the Act of 2013.
bipin prithiani
10
wp-1173.16 & anr.doc
11. In support of the said contention, the learned counsel for the
petitioners placed reliance on the judgment of the Supreme Court
in the case of Indian City Properties Ltd. & Anr. vs. Municipal
Commissioner of Greater Bombay & Anr., (2005) 6 SCC 417. It
was submitted that these very provisions fell for consideration
before the Supreme Court and the interpretation being advanced
on behalf of the petitioners in the present case was accepted by the
Supreme Court. On this basis, it was submitted that the position of
law is clearly in favour of the petitioners. Reliance was also placed
on judgment and order dated 18 th July 2018, passed by a Division
Bench of this Court in the case of Jasuben Raghavji Patel vs.
Municipal Corporation of Greater Mumbai (MCGM) & Ors., in
Writ Petition No.3082 of 2014. It was submitted that the said case
was concerned with acquisition of a piece of land concerning
construction of the same flyover, only a few meters away. In the
said case, this Court rendered a finding that the compensation
could not have determined under Section 301 of the MMC Act.
Thereupon, this Court directed the respondent-MCGM to take
recourse to the provisions of the Act of 2013 to acquire the subject
land and structures thereon and to pay compensation accordingly.
It was further directed that since possession was already taken,
rental compensation as per the policy of the respondent-State
would also be payable to the petitioners therein. It was submitted
that the aforesaid judgment also clearly covered the position of
law in favour of the petitioners.
bipin prithiani
11
wp-1173.16 & anr.doc
12. The learned counsel for the petitioners in the said writ
petition submitted that the respondent-MCGM cannot deny reliefs
by placing reliance on judgment of Division Bench of this Court in
the case of Municipal Corporation of Greater Bombay vs.
Durgadas Shankarrao Rege & Anr., AIR 1980 Bom 93. It was
submitted that the questions for determination in the said petition
pertained to the right of the respondent-MCGM to take recourse
to Sections 297 to 301 of the MMC Act. It was submitted that in a
given factual scenario, the respondent-MCGM could well be
justified in taking recourse to the said provisions, but it was
emphasized that in the present case, the said provisions did not
apply. It was further submitted that the judgment of the Supreme
Court in the case of Municipal Corporation of Greater Bombay &
Ors. vs. Central Bank of India & Anr., (1994) 4 SCC 690, relied
upon by the respondent-MCGM can also not be the basis for
denying reliefs to the petitioners because the basis for
determination of compensation under Section 301 of the MMC
Act, could be different from the determination of market value
under the statute pertaining to land acquisition and compensation,
but the present case raises the question of the very applicability of
Section 301 of the MMC Act. On the basis of the said contention,
the learned counsel appearing for the petitioners also sought to
distinguish judgment of the Division Bench of this Court relied
upon by the respondent-MCGM in the case of Shankara N. Shetty
& Ors. vs. State of Maharashtra & Ors., (2008) 1 Mah LJ 740.
bipin prithiani
12
wp-1173.16 & anr.doc
13. As regards reliance placed on an order passed by a Division
Bench of this Court in the case of Dr. Kirtkumar B. Mehta vs.
Municipal Corporation for Greater Mumbai & Ors., 2018 SCC
OnLine Bom 13684, it was submitted that the same was a
desperate attempt on the part of the MCGM to somehow deprive
the petitioners of reliefs. It was submitted that in none of the
affidavits filed on behalf of the respondent-MCGM was it ever
disputed that the structures of the petitioners were authorized. As
a matter of fact, the said structures existed from prior to the
datum line of 1962 and they existed even before the city survey
was carried out. Attention of this Court was specifically invited to
the affidavit in rejoinder dated 7 th March 2016 filed on behalf of
the petitioners, wherein the said assertion was made. Since, there
was no dispute raised by the respondent-MCGM regarding the
same, it was submitted that the writ petitions deserved to be
allowed.
14. Mr. Vishal Kanade, learned counsel appearing on behalf of
the petitioners in Writ Petition No. 414 of 2023, supported the
contentions raised by the learned counsel for the petitioners in
Writ Petition No. 1173 of 2016. It was submitted that additionally,
the petitioners in Writ Petition No. 414 of 2023, being land
owners of the subject lands and very much having an interest
therein, ought to have been heard by the Deputy Municipal
Commissioner of the respondent-MCGM, before issuing the
impugned order dated 11th June 2018. It was submitted that the
bipin prithiani
13
wp-1173.16 & anr.doc
quantum of compensation and apportionment thereof was
determined behind the back of the said petitioners, thereby clearly
violating the principles of natural justice. It was submitted that the
impugned order deserves to be set aside, on this additional ground
also and it was further submitted that the respondents ought to be
directed to determine the quantum of compensation by recourse
to Section 296 of the MMC Act, read with the provisions of the
Act of 2013. It was submitted that the petitioners in Writ Petition
No. 414 of 2023 are reserving their right to raise their dispute
with the petitioners in Writ Petition No.1173 of 2016. The said
dispute would be raised after the compensation is determined, as
prayed on behalf of the said petitioners.
15. On the other hand, Mr. Sakhare, learned Senior Counsel
appearing on behalf of respondent Nos.1 to 4 and 6, the officers
of the MCGM, opposed the contentions raised on behalf of the
petitioners in both the writ petitions. It was submitted that the
Deputy Municipal Commissioner of the respondent-MCGM had
correctly taken recourse to Sections 298 to 301 of the MMC Act,
for determining the quantum of compensation payable to the
petitioners. It was submitted that since the regular line pertaining
to the street/road was admittedly determined and the subject lands
were located within the regular line, respondent-MCGM was
entitled to proceed to determine compensation under Section 301
of the MMC Act. Much emphasis was placed on the judgment of
this Court in the case of Municipal Corporation of Greater
bipin prithiani
14
wp-1173.16 & anr.doc
Bombay vs. Durgadas Shankarrao Rege & Anr. (supra), wherein it
was held that Sections 298 to 301 of the MMC Act constituted a
code in itself for determination of compensation and that recourse
to the provisions of land acquisition statute was not necessary. It
was emphasized that since the regular line of the public street in
the present case was admittedly determined and the land as well as
structures in the present case were located within the said regular
line, there was no question of recourse to Section 296 of the
MMC Act, for determination of compensation. The judgment and
order of this Court in the case of Jasuben Raghavji Patel vs.
Municipal Corporation of Greater Mumbai (MCGM) & Ors.
(supra) relied upon by the petitioners, was sought to be
distinguished on the ground that in the said case, it was recorded
that the subject land was not within the regular line of the public
street and therefore, in the said case, it was held that the
compensation could not be fixed under Section 301 of the MMC
Act.
16. It was emphasized that the Supreme Court in the case of
Municipal Corporation of Greater Bombay & Ors. vs. Central
Bank of India & Anr. (supra) had specifically held that when the
compensation was determined under Section 301 of the MMC
Act, the determination of quantum of compensation was not
required to be made as per market value of the land and building.
In this backdrop, it was submitted that a perusal of the impugned
order dated 11th June 2018 would show that the Deputy
bipin prithiani
15
wp-1173.16 & anr.doc
Municipal Commissioner of the respondent-MCGM had properly
taken into consideration the ready reckoner rate and after
applying all relevant factors, arrived at a just figure of
compensation payable to the petitioners, which did not deserve
interference in writ jurisdiction. Reliance was also placed on the
judgment of this Court in the case of Shankara N. Shetty & Ors.
vs. State of Maharashtra & Ors. (supra) on the aspect of existence
of regular line. Reference was also made to judgment and order
dated 26th April 2019 passed by a Division Bench of this Court in
Writ Petition No. 213 of 2019 (Ramesh G. Karani & Ors. vs. Slum
Rehabilitation Authority & Ors.) and connected writ petitions.
Towards the end of the arguments, learned Senior Counsel
appearing for respondent-MCGM referred to order passed by this
Court in the case of Dr. Kirtkumar B. Mehta vs. Municipal
Corporation for Greater Mumbai & Ors. (supra) to contend that
since there was nothing to show that the structures of the
petitioners were legal, recourse to Section 299 of the MMC Act
was justified. On this basis, it was submitted that the writ petitions
deserved to be dismissed.
17. The learned counsel for the other respondents supported the
contentions raised on behalf of the respondent-MCGM and
sought dismissal of the writ petitions.
18. We have considered the rival submissions. The real
controversy in the present case concerns the question as to
whether determination of compensation for utilization of the land
bipin prithiani
16
wp-1173.16 & anr.doc
and buildings in these two writ petitions was to be undertaken by
recourse to Sections 298 to 301 of the MMC Act or under Section
296 read with Section 91 thereof, along with provisions of the Act
of 2013. At the heart of the controversy is Section 299 of the
MMC Act, because if the respondent-MCGM is found to be
justified in asserting that the facts of the present case gave rise to a
situation covered under Section 299 of the MMC Act,
compensation would certainly be payable under Section 301
thereof. On the other hand, if it is found that the factual position
in the present case does not give rise to a situation covered under
Section 299 of the MMC Act, Section 301 thereof would not be
applicable and respondent-MCGM would be liable to undertake
the exercise of acquisition of the subject land and buildings by
recourse to Section 296 of the MMC Act, read with the provisions
of the Act of 2013.
19. Therefore, it would be appropriate to refer to the
aforementioned provisions of the MMC Act. The relevant
provisions of the MMC Act, read as follows :
“91. Procedure when immovable property cannot be acquired
by agreement.– (1) Whenever the Commissioner is unable to
acquire any immovable property under the last preceding
section by agreement the State Government may, in their
discretion, upon the application of the Commissioner, made
with the approval of the Improvements Committee and
subject to the other provisions of this Act order proceedings
to be taken for acquiring the same on behalf of the
corporation, as if such property were a land needed for a
public purpose within the meaning of the Land Acquisition
Act, 1870.
bipin prithiani
17
wp-1173.16 & anr.doc(2) The amount of compensation awarded and all other
charges incurred in the acquisition of any such property shall,
subject to all other provisions of this Act, be forthwith paid by
the Commissioner and thereupon the said property shall vest
in the corporation.
Sections 92 to 295 ***********************
296. Power to acquire premises for improvement of public
street.– (1) The Commissioner may, subject to the provisions
of section 90, 91 and 92-–
(a) acquire any land required for the purpose of
opening, widening, extending or otherwise improving
any public street or of making any new public street,
and the buildings, if any standing upon such land;
(b) acquire in addition to the said land and the
buildings, if any, standing, thereupon, all such land with
the buildings, if any, standing thereupon, as it shall seem
expedient for the corporation to acquire outside of the
regular line, or of the intended regular line, of such
street;
(c) lease, sell or otherwise dispose of any land or
building purchased under clause (b).
(2) Any conveyance of land or of a building under clause (c)
may comprise such conditions as the Commissioner thinks fit,
as to the removal of the existing building, the description of
new building to be erected, the period within which such new
building shall be completed and other such matters.
Preservation of Regular Line in Public Streets
297. Prescribing the regular line of a street.– (1) The
Commissioner may:–
(a) prescribe a line on each side of any public
street:
Provided that in the case of any public street in the
suburbs the regular line of a public street operative under any
law in force in any part of the suburbs on the day immediately
preceding the date of coming into force of the Bombay
Municipal (Extension of Limits) Act, 1950 (Bom. VII of
bipin prithiani
18
wp-1173.16 & anr.doc1950), 2[land in the case of any public street in the extended
suburbs the regular line of a public street operative under any
law in force in any part of the extended suburbs on the day
immediately preceding the date of the coming into force of
the Bombay Municipal [Further Extension of Limits and
Schedule BBA (Amendment)] Act, 1956 (Bom. LVIII of 1956)]
shall be deemed to be a line prescribed by the Commissioner
under this clause.
(b) from time to time, but subject in each case to
his receiving the authority of the corporation in that
behalf, prescribe a fresh line in substitution for any line
so prescribed or for any part thereof provided that such
authority shall not be accorded–
(i) unless, at least one month before the meeting
of the corporation at which the matter is decided public
notice of the proposal has been given by the
Commissioner by advertisement in local newspapers as
well as in the 3[Official Gazette], and special notice
thereof, signed by the Commissioner, has also been put
up in the street or part of the street for which such fresh
line is proposed to be prescribed, and
(ii) until the corporation have considered all
objections to the said proposal made in writing and
delivered at the office of the municipal secretary not
less than three clear days before the day of such
meeting.
(2) The line for the time being prescribed shall be called
‘the regular line of the street’.
(3) No person shall construct any portion of any
building within the regular line of the street except with the
written permission of the Commissioner, who shall, in every
case in which he gives such permission, at the same time
report his reasons in writing to the Standing Committee.
298. Setting back buildings to regular line of the street.– (1)
If any part of a building abutting on a public street is within
the regular line of such street, the Commissioner may,
whenever it is proposed–
bipin prithiani
19
wp-1173.16 & anr.doc
(a) to rebuild such building or to take down such
building to an extent exceeding one-half thereof above
the ground level, such half to be measured in cubic feet;
or
(b) to remove, re-construct or make any addition
to any portion of such building, which is within the
regular line of the street,
in any order which he issues, under section 345 or 346,
concerning the re-building, alteration or repair of such
building require such building to be set back to the regular
line of the street.
(2) When any building, or any part thereof within the
regular line of a public street, falls down, or is burnt down, or
is taken down whether under the provisions of section 351 or
354 or otherwise, the Commissioner may at once take
possession on behalf of the corporation of the portion of land
within the regular line of the street therefor occupied by the
said building, and, if necessary, clear the same.
(3) Land acquired under this section shall thence
forward be deemed a part of the public street and shall vest,
as such, in the corporation.
299. Acquisition of open land or of land occupied by
platforms, etc., within the regular line of a street.– (1) If any
land not vesting in the corporation, whether open or
enclosed, lies within the regular line of a public street, and is
not occupied by a building, or if a platform, verandah, step or
some other structure external to a building abutting on a
public street, or a portion of a platform, verandah, step or
other such structure, is within the regular line of such street,
the Commissioner may, after giving to the owner of the land
or building not less than seven clear days written notice of his
intention so to do, take possession on behalf of the
corporation of the said land with its enclosing wall, hedge or
fence, if any, or of the said platform, verandah, step or other
such structure as aforesaid, or of the portion of the said
platform, verandah, step or other such structure aforesaid
which is within the regular line of the street, and, if necessary,
clear the same and the land so acquired shall thence forward
bipin prithiani
20
wp-1173.16 & anr.doc
be deemed a part of the public street.
Explanation.– For the purposes of acquisition of open
land lying within the regular line of a public street, and not
occupied by a building constructed before the 25th March,
1991 and occupied without obtaining the permission to
occupy the building from the Commissioner under section
353A, ‘owner’ of the said land or building means a co-
operative housing society or a federation of co-operative
housing societies registered under the Maharashtra Co-
operative Societies Act, 1960 or any condominium or a
company incorporated under the Companies Act, 1956 with
limited liability or an association of person or any ad hoc
body formed by the occupants of the building.
(2) Provided that, when the land or building is vested in
the Government possession shall not be taken as aforesaid
without the previous sanction of the Government concerned
and, when the land or building is vested in any corporation
constituted by Royal Charter or by an Act of Parliament, of
the United Kingdom or by an Indian Law, possession shall not
be taken as aforesaid without the previous sanction of the
State Government.
300. **********************
301. Compensation to be paid in cases under the three last
sections.– (1) Compensation shall be paid by the
Commissioner to the owner of any building or land acquired
for a public street under section 298 or 299, for any loss
which such owner may sustain in consequence of his building
or land being so, acquired and for any expense incurred by
such owner in consequence of the order made by the
Commissioner under either of the said sections; provided that
any increase or decrease in the value of the remainder of the
property of which the building or land so acquired formed
part likely to accrue from the set-back to the regular line of
the street shall be taken into consideration and allowed for in
determining the amount of such compensation.
(2) If, in consequence of any order to set forward a
building made by the Commissioner under the last preceding
section, the owner of such building sustains any loss or
bipin prithiani
21
wp-1173.16 & anr.doc
damage, compensation shall be paid to him by the
Commissioner for such loss or damage.
(3) If the additional land which will be included in the
premises of any person required or permitted under the last
preceding section to set forward a building belongs to the
corporation, the order or permission of the Commissioner to
set forward the building shall be a sufficient conveyance to the
said owner of the said land; and the price to be paid to the
corporation by the said owner for such additional land and
the other terms and conditions of the conveyance shall be set
forth in the said order or permission.
(4) If when the Commissioner requires a building to be
set forward, the owner of the building is dissatisfied with the
price fixed to be paid to the corporation or any of the other
terms and conditions of the conveyance, the Commissioner
shall, upon the application of the said owner at anytime
within fifteen days after the said terms and conditions are
communicated to him, refer the case for the determination of
the Chief Judge of the Small Cause Court, whose decision
thereupon shall be conclusive.”
20. A perusal of the above quoted provisions of the MMC Act,
shows that the Commissioner can prescribe the regular line of the
street under Section 297 of the MMC Act and as per Section 299
thereof, the respondent-MCGM can acquire and take possession
of land occupied by platform, etc within the regular line of a
street. The words used in Section 299 of the MMC Act, quoted
hereinabove, are of much significance. In the first place, the pre-
requisite for applying Section 299 of the MMC Act is prescription
of a regular line of a public street. In this case, it is undisputed that
the regular line was indeed prescribed. But, it is important to note
that Section 299 of the MMC Act applies when the subject land
lies within the regular line of a public street and it is not occupied
bipin prithiani
22
wp-1173.16 & anr.doc
by a building. Only if a platform, verandah, step or some other
structure external to a building abutting the public street is found
to be within the regular line of such street, the Commissioner can
take possession of such land or of such platform, verandah, step or
other structure, clear the same and the land so acquired is then
deemed to be part of the public street. Section 301 of the MMC
Act provides for compensation to be paid in cases that are covered
under Section 299 thereof. Therefore, Section 301 of the MMC
Act would apply only where the land lying within the regular line
of the public street is not occupied by a building or if only a
platform, verandah, step or some other structure external to a
building abutting the public street lies within the regular line of
such street.
21. The Supreme Court in the case of Indian City Properties
Ltd. & Anr. vs. Municipal Commissioner of Greater Bombay &
Anr. (supra) had an occasion to deal with the interpretation of the
said provision and after referring to the same, in the said
judgment, it was held as follows :
“17. Sections 297 to 311 are grouped together under the sub-
title “Preservation of Regular Line in Public Streets”. Section 297
prescribes the method by which the Commissioner may prescribe
a line on each side of any public street which is called the
“regular line” of the street. Section 298 allows the Commissioner
to dispose of proposals relating to rebuilding or removal or
reconstruction or additions in respect of any part of a building
abutting on a public street which is within the regular line of
such street. In passing an order on the proposals under Section
345 or 346, the Commissioner may require such building to be
set back to the regular line of the street. Section 301 mandates
bipin prithiani
23
wp-1173.16 & anr.docpayment of compensation to be paid by the Commissioner to the
owner of any building or land acquired for a public street under
Section 298 or 299 for any loss which such owner may sustain in
consequence of his building or land being so acquired and for
any expenses incurred by such owner in consequence of an order
made by the Commissioner under either of the sections.
18. It needs to be noted that in all these sections the word used
is “building” in contradistinction with Section 299 which speaks
of “structures” and “buildings”.
19. The word “structure” is used as a generic term so that
while all buildings may be structures, all structures are not
buildings. That structure which is not a building and is a
platform, verandah, step, or some other such structure external
to a building may be taken over by the Commissioner under
Section 299(1) if it is within the regular line of the street. The
words “some other such” must be construed as structures similar
or like platform, verandah and step. The words must be read
ejusdem generis with the preceding words since the word “such”
means “of the type previously mentioned” [See Concise Oxford
English Dictionary (10th Edn.)]. The word “other” has also been
held to indicate that it must be construed ejusdem generis
[Siddeshwari Cotton Mills (P) Ltd. v. Union of India, (1989) 2
SCC 458 : 1989 SCC (Tax) 297; CCE v. Ramdev Tobacco Co.,
(1991) 2 SCC 119]. The underlying characteristic of platforms,
verandahs and steps is that they are not independent structures
and are external to a building, that is they are attached to the
outside and form an inessential part of a building. In our
opinion, therefore in order to be a building for the purpose of
Section 299 the structure would have to be an independent,
permanent structure. Thus, there is no repugnancy if one were to
read the definition of building and Section 299 and in our
opinion the word “building” has been used in Section 299 in the
sense defined in Section 3(s).”
22. We are of the opinion that the moment it is found that a
building exists on the land lying within the regular line of a public
street, Section 299 of the MMC Act does not apply. In this
context, it is also necessary to peruse Section 298 of the MMC
bipin prithiani
24
wp-1173.16 & anr.doc
Act, which has been quoted hereinabove. It pertains to setting back
of buildings to regular line of the street. Sub-section (1) thereof,
pertains to a situation where a part of a building abutting the
public street, is within the regular line and when it is proposed to
rebuild such a building or take down such a building, the
Commissioner can pass an order concerning such rebuilding or
repair, so as to require such building to be set back to the regular
line of the street. Sub-section (2) of Section 298 of the MMC Act,
specifies that when any building within the regular line of a public
street falls down or is burnt down or is taken down, the
Commissioner can at once take possession of that portion of the
land within the regular line of the street and clear the same.
Thereupon, such land under sub-section (3) of Section 298 is
deemed to be a part of the public street and vests in the
Corporation.
23. It is an admitted position that none of the contingencies
contemplated under Section 298 of the MMC Act, are found in
the present case. This is evident from the fact that the buildings of
the petitioners neither fell down nor were they burnt down and
they were not taken down under Section 351 of the MMC Act
(pertaining to unauthorisedly constructed buildings) or Section
354 thereof (pertaining to removal of ruinous structures likely to
fall). It is an admitted position that the respondent-MCGM started
the work of demolishing the buildings of the petitioners without
notice, for the stated object of construction of the road and
bipin prithiani
25
wp-1173.16 & anr.doc
flyover, without any reference to or claiming any of the
contingencies found in Section 298 of the MMC Act.
24. Once such a factual position is established, we find that
there is considerable substance in the contentions raised on behalf
of the petitioners. Considering the averments made in the Writ
Petition No. 1173 of 2016 and the tenor of the affidavits filed on
behalf of the respondent-MCGM, we find that the buildings and
structures occupied by the petitioners therein, fully existed and lay
within the regular line of the public street and hence, Section 299
of the MMC Act could not have been invoked by respondent-
MCGM. The only logical consequence is that Section 301 of the
MMC Act does not apply and therefore, the respondent-MCGM
could not have determined compensation by taking recourse to the
said provision. In that light, it was incumbent upon respondent-
MCGM to have acquired the lands and buildings of the petitioners
by taking recourse to Section 296 of the MMC Act, which pertains
to power to acquire premises for improvement of public streets.
This would necessarily require reference to Section 91 of the
MMC Act, which prescribes that when MCGM is unable to
acquire immovable property by way of agreement, it would have
to be acquired by recourse to the land acquisition statute. Hence,
we do not find force in the contention raised on behalf of the
respondent-MCGM that compensation was correctly determined
by the Deputy Municipal Commissioner of the respondent-
MCGM in the order dated 11th June 2018, by taking recourse to
bipin prithiani
26
wp-1173.16 & anr.doc
Section 301 of the MMC Act.
25. A perusal of the said order dated 11 th June 2018 shows that
there are some self-contradictory observations made therein.
While it appears that eventually, the final compensation amount
was determined by the Deputy Municipal Commissioner in the
said order dated 11th June 2018, by taking recourse to Section 301
of the MMC Act, at one place, it is recorded in the said order itself
that the respondent-MCGM shall pay compensation as per the
Land Acquisition Act. Since, the Deputy Municipal Commissioner
had proceeded eventually under Section 301 of the MMC Act, the
quantum of compensation has been determined on the basis of the
ready reckoner rate. Even while reaching the final figure payable
to the petitioners in Writ Petition No. 1173 of 2016, we find that
the Deputy Municipal Commissioner has proceeded to make
deductions on various grounds, that also appear to be arbitrary
and unjustified. But, it would not be necessary for this Court to go
into the said controversy, if it is found that the Deputy Municipal
Commissioner, while passing the said order dated 11 th June 2018,
was not justified by taking recourse to Section 301 of the MMC
Act for determining the quantum of compensation. Once the
contention raised on behalf of the petitioners is accepted that the
said lands/buildings could have been acquired only under Section
296 of the MMC Act, read with the Act of 2013, the entire
exercise of determining compensation would have to be carried
out afresh.
bipin prithiani
27
wp-1173.16 & anr.doc
26. We also find that the petitioners in Writ Petition No. 414 of
2023 are clearly justified in claiming that principles of natural
justices were violated when the quantum of compensation was
determined behind their back, despite acknowledging in the order
itself that there were multiple claimants, including the landlords.
This is another ground on the basis of which the aforesaid
impugned order dated 11th June 2018, deserves to be set aside.
27. But, it would be necessary to deal with the judgments upon
which much emphasis is placed on behalf of the respondent-
MCGM.
28. A perusal of the judgment in the case of Municipal
Corporation of Greater Bombay vs. Durgadas Shankarrao Rege &
Anr. (supra), upon which much emphasis was placed on behalf of
the respondent-MCGM, would show that the following three
questions fell for determination before this Court :
“4. The questions which thus fall our determination in this
Appeal so far as the challenge under Article 14 is concerned
are:
(1) whether the group of sections, namely, sections 297 to
301 of the Act, constitute a mode of acquisition
alternative to the mode of acquisition provided for by
section 296 or whether this group of sections
constitutes an exception to the general provisions
contained in section 296;
(2) if this group of sections constitutes an exception to the
general provisions contained in section 296 of the Act,
whether the classification made thereby is a reasonable
one founded on an intelligible differentia and having a
rational relation or nexus to the object sought to be
bipin prithiani
28
wp-1173.16 & anr.doc
achieved; and
(3) whether there is any substantial or quantitative
prejudice to the owner whose land is acquired under
this group of sections as compared to owner of land
who is proceeded against under section 296 of the Act.”
29. The said questions were answered by analysing Sections 297
to 301 of the MMC Act. In paragraph 10 of the said judgment, the
language of Sections 298 and 299 of the MMC Act was considered
and interpreted on a plain reading of the said provisions.
Thereafter, in paragraph 11, it was observed as follows:
“11. An analysis of these sections show that sections 297 to 301
of the Act constitute a complete scheme for a particular purpose.
The acquisition under sections 298 and 299 can only be in
respect of land falling within the regular line of the street.
Further, it can only be in respect of land which is not occupied
by a building or which is occupied only by a compound wall or a
platform, verandah, step or some other structure which is
external to the building. Any other type of land or any building
can only be acquired under section 296 of the Act. Thus, the
acquisition under sections 298 and 299 is in respect of a
particular kind of properly only. These sections are thus
particular enactments contained in the Act. If they are particular
enactments, then on the rules of interpretation of statutes
enunciated above, the general provisions contained in section
236 of the Act and these particular provisions must be read
harmoniously and the general provisions must be interpreted to
affect only those types of properties which do not come under
the particular provisions. These particular provisions thus
constitute an exception to the general provisions enacted in
section 296 of the Act. If the Municipal Commissioner desires to
acquire land which is not built upon or land from which the
owner voluntarily wants to remove his building for the purpose
of rebuilding or reconstruction or which becomes open by reason
of the building falling down or being compulsorily demolished or
removed and if such land falls within the regular line of the
street, in our opinion, the Municipal Commissioner has no
discretion and no power to proceed to acquire it under section
bipin prithiani
29
wp-1173.16 & anr.doc236 of the Act. He must proceed to acquire it only under section
298 or 299, as the case may be. As held by the Supreme Court in
State of Gujarat v. Shantilal Mongaldas, AIR 1969 SC 634, 654
(1), it is a settled rule of interpretation of statutes that when
power is given under a statute to do a certain thing in a certain
way the thing must be done in that way or not at all.”
30. Thereafter, it was held in the said judgment that the land
owner, whose land is acquired and compensation is paid under
Sections 297 to 301 of the MMC Act, does not suffer any
prejudice, as compared to the owner of the land, who is proceeded
against under Section 296 of the MMC Act. In that context, it was
observed as follows :
” Thus, while the object underlying sections 297 to 300
of the Act is to prescribe a building line, the object underlying
section 296 is wholly different. That object is that of opening,
widening, extending or otherwise improving any public street
or making a new public street. This section is not concerned
with the regular line of the street or with the building line nor
is the acquisition thereunder confined by any reference to the
regular line of the street. The powers under that section are
not to be exercised by the Municipal Commissioner alone.
They are to be exercised in the manner prescribed by sections
90 and 91 of the Act to which reference has already been
made. The contention of the first respondent that the object
of widening a street is common to both sections 296 and 297
of the Act must, therefore, be rejected.”
31. We are of the opinion that the findings rendered in the said
judgment, pertaining to the three questions identified therein, do
not take the case of the respondent-MCGM any further, simply
for the reason that we have reached the conclusion that in the
facts of the present case, the self-contained code under Sections
297 to 301 of the MMC Act does not apply and that acquisition
bipin prithiani
30
wp-1173.16 & anr.doc
of lands and buildings as well as determination of compensation
could have been undertaken only by recourse to Section 296 of
the MMC Act, read with the Act of 2013.
32. As regards judgment of the Supreme Court in the case of
Municipal Corporation of Greater Bombay & Ors. vs. Central
Bank of India & Anr. (supra), one of the questions that fell for
consideration was, as to whether Section 301 of the MMC Act
specified a principle for determination of compensation, according
to market value of the lands and/or buildings. After referring to
the relevant provisions and precedents, the Supreme Court
answered the question by holding that the principles specified in
Section 301 of the MMC Act, for determination of compensation
payable to the owners of the lands or buildings acquired under
Section 298 or 299 of the MMC Act, did not warrant
determination of compensation according to market value of the
lands and/or buildings. The aforesaid conclusion was based on the
words used in Section 301 of the MMC Act, which refers to loss
or damage suffered by the owner, as a consequence of acquisition
of such land or building. We fail to understand how the ratio of
the judgment can come to the aid of the respondent-MCGM in
opposing the reliefs claimed in the present petition, once it is
found that Sections 298 and 299 of the MMC Act do not apply to
the facts of the present case, as the subject land was occupied by
buildings and such buildings lay within the regular line of the
public street. For the same reason, reliance placed on judgments of
bipin prithiani
31
wp-1173.16 & anr.doc
this Court in the cases of Shankara N. Shetty & Ors. vs. State of
Maharashtra & Ors. (supra) and Ramesh G. Karani & Ors. vs.
Slum Rehabilitation Authority & Ors. (supra), is not justified.
33. Towards the end of arguments, we were surprised to note
that a contention was sought to be raised on behalf of the
respondent-MCGM that since the buildings and structures of the
petitioners were not demonstrated to be authorized, it could be
said in law that the land was not occupied by buildings, thereby
justifying recourse to Section 299 of the MMC Act. A perusal of
the affidavits filed on behalf of the respondent-MCGM in Writ
Petition No. 1173 of 2016, shows that nowhere did the said
respondent raise any such contention at all. As a matter of fact, a
proper appreciation of the contents of the said affidavits would
show that the response of the respondent-MCGM to the said
petition proceeded on the basis that the buildings and structures
were authorized. We also find that the petitioners specifically
stated in their rejoinder affidavit dated 7 th March 2016, as
follows :
“6. I say that in Affidavit-in-Reply dated 17th February,
2016, the Respondents have admitted that the Petitioners are
owners of R.C.C. structure standing on the land bearing
C.T.S. No.33B, 33B/1 to 33B/26. I say that the said structure
is in existence prior to the datum line. The structure is
completely authorised. Therefore, at the most the provisions
of Section 298 will apply. By no stretch of imagination the
provisions of Section 299 can be made applicable to the
present case.”
34. This was never disputed by respondent-MCGM. It was
bipin prithiani
32
wp-1173.16 & anr.doc
brought to our notice that the said buildings and structures existed
prior to the datum line of 1962 and before the city survey was
carried out. In the face of such facts, we find that a public body
like the Municipal Corporation i.e. respondent-MCGM, by way of
a desperate attempt, is somehow seeking to wriggle out of Section
296 of the MMC Act, read with the provisions of the Act of 2013.
Therefore, we find that the aforesaid contention belatedly raised
on behalf of the respondent-MCGM is not justified and the
judgment of this Court in the case of Dr. Kirtkumar B. Mehta vs.
Municipal Corporation for Greater Mumbai & Ors. (supra)
cannot be relied upon by the said respondent.
35. In view of the above, we find that the writ petitions deserve
to be allowed. We also find that the inter se dispute between the
petitioners in Writ Petition No. 1173 of 2016 on the one hand and
the petitioners in Writ Petition No. 414 of 2023 on the other,
regarding apportionment of compensation need not be considered
and decided in these proceedings. The said dispute can be decided
in accordance with law, after the quantum of compensation is
determined as per the directions proposed to be issued by this
Court, as a consequence of the writ petitions being allowed.
36. The writ petitions are allowed in the following terms :
(a) It is found that respondent-MCGM wrongly determined the
compensation by taking recourse to Section 301 of the
MMC Act, as Section 299 thereof is found to be
inapplicable to the facts of the present case.
bipin prithiani
33
wp-1173.16 & anr.doc
(b) The impugned order dated 11th June 2018 passed by the
Deputy Municipal Commissioner of respondent-MCGM,
determining the compensation by taking recourse to Section
301 of the MMC Act, is quashed and set aside.
(c) As a consequence, the respondents, including the
respondent-MCGM, are directed to take steps for
acquisition of the subject lands and buildings/structures of
the petitioners by taking recourse to Section 296 of the
MMC Act, read with the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
(d) The said exercise shall be completed and award shall be
passed within one year from the date of this order.
(e) The claims of the petitioners in both the writ petitions, with
regard to their right to compensation and inter se
apportionment thereof, shall be determined in accordance
with law, after the award is pronounced, determining the
quantum of compensation. All rights and contentions of the
petitioners in both the writ petitions in that regard, are kept
open.
(f) Since possession of the subject properties was taken, the
petitioners shall be entitled to rental compensation, if any, in
accordance with the policy of the respondent-State in that
regard. All rights and contentions of the parties in that
regard, are kept open.
bipin prithiani
34
wp-1173.16 & anr.doc
(g) The amounts already withdrawn by the petitioners in Writ
Petition No. 1173 of 2016 shall be taken into account and
adjusted, when the quantum of compensation is determined
in terms of the directions given hereinabove.
37. Pending applications, if any, also stand disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.) Digitally signed by BIPIN BIPIN DHARMENDER DHARMENDER PRITHIANI PRITHIANI Date: 2026.07.17 15:07:32 +0530
